In Re the Personal Restraint of Jeffries

Pearson, C.J.

(dissenting) — I dissent from the portion of the majority's opinion which holds that the prosecutor's remarks regarding defendant's right to appeal are distinguishable from the prosecutor's remarks in Caldwell v. Mississippi, 472 U.S. 320 , 86 L. Ed. 2d 231 , 105 S. Ct. 2633 (1985).

The critical portion of the prosecutor's comments in Caldwell was:

[Y]our decision is not the final decision. . . . [y]our job is reviewable.

Caldwell , at 325. In the present case the prosecutor told the jury:

He will get appeals, you name it ... so don't think that you're killing him because you're giving him law . . .

The substance of the comments in practicality is indistinguishable. Basically, both prosecutors were introducing into the jurors' minds the idea that they can err because their error can be corrected by a "higher" authority. Such an argument is an invitation to abdicate responsibility. The Caldwell Court held that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere. Caldwell , at 328-29. As one commentator has noted:

The Court's decision in Caldwell is also supported by the decisions of most of the state courts that have addressed the issue of the propriety of references in a prosecutor's argument to appellate review. All of those courts have recognized that such references pose the danger of diminishing the jury's sense of its responsibility.

*347 Eighth Amendment — References to Appellate Review in Capital Sentencing Determinations, 76 J. Crim. L. & Criminology 1051 , 1061 (1985). See, e.g., State v. Willie, 410 So. 2d 1019, 1035 (La. 1982) (mention of appellate review "improperly diminishes the jury's duty and responsibility"), cer t. denied, 465 U.S. 1051 (1984); People v. Johnson, 284 N.Y. 182, 185 , 30 N.E.2d 465 (1940) (remarks made it "doubtful whether the jury could thereafter render a verdict with full appreciation of its responsibility").

Four members of the majority in Caldwell held that the availability of appellate review is a factor that is "wholly irrelevant" to the determination of the appropriate sentence. Caldwell , at 336. The introduction of irrelevant matter is especially troubling in the penalty phase of a capital case. This court has held that the introduction of irrelevant evidence of a defendant's exercise of his right to bear arms required reversal of the death sentence. State v. Rupe, 101 Wn.2d 664 , 683 P.2d 571 (1984). The concurring opinion in Caldwell agreed that the prosecutor's comments diminished the jury's sense of responsibility, but stated that accurate instructions delineating the existence and the limited scope of appellate review were constitutionally permissible. Caldwell , at 342 (O'Connor, J., concurring).

Either of these approaches, complete silence on the availability of appellate review or instructions explaining the limited scope of appellate review, are acceptable alternatives. What is not acceptable is information being given to the jury that its decision is appealable without any explanation of the scope of such appeals. What does the statement, "He will get appeals" mean to the average juror? A juror may well have no idea of the scope of appellate review or of the limited questions a reviewing court may properly ask. Mightn't a juror think that "higher" decision makers are more qualified or that a death sentence will be overturned on appeal if it is "wrong". Mightn't a juror be led to believe that his decision is merely the first step in a long line of equally powerful, broad-based decisions which could ultimately culminate with a final death penalty.

*348 Rather than quibble over whether a given prosecutor's comments regarding appeal come close enough to the language which the prosecutor offered in the Caldwell case, I find it more important to look to the dangers which moved the Supreme Court in Caldwell to reverse the death penalty. Any reference to appeals which fails to warn the jury of the limited scope of appeal interjects factors into the decisionmaking process which we cannot know or assess.

The Caldwell Court recognized that an appellate court, unlike a capital sentencing jury, is wholly ill suited to evaluate the appropriateness of death in the first instance. Caldwell , at 330. The dangers the Caldwell Court foresaw from a prosecutor introducing the availability of appellate review include concerns that: the jury may shift its sense of responsibility to an appellate court; the jury may misunderstand the limited nature of appellate review; the jury may impose the death penalty merely to send a message of extreme disapproval to the defendant while relying on an appellate court to reduce the sentence; or a divided jury may be more likely to agree, relying on appellate review. This last concern is most acute in this case since this court's 5-to-4 decision in Jeffries' direct appeal suggests that a rational juror could have reached a different decision.

As Justice Marshall has written, "[wjhere life itself . . . hangs in the balance, a fine precision in the process must be insisted upon." Lockett v. Ohio, 438 U.S. 586, 620 , 57 L. Ed. 2d 973 , 98 S. Ct. 2954 (1978) (Marshall, J., concurring). In Gregg v. Georgia, 428 U.S. 153 , 49 L. Ed. 2d 859 , 96 S. Ct. 2909 (1976), the United States Supreme Court explained that the goal in a capital case is to focus the attention of the jury on the particularized circumstances of the crime and the defendant. By interjecting the availability of appeal into the jury's deliberations, the attention is shifted away from focus on this particular defendant and his crime and away from the inquiry whether that crime deserves the death penalty. In Caldwell the Court vacated *349 the death sentence because it could not conclude the comments "had no effect on the sentencing decision". I would likewise find in this case that we cannot determine what effect the comments regarding appeal had on the jury's decision. We cannot know that the sentence of death would still have been handed down in this close case had the prosecutor not interjected the possibility of appeals.

I would find it fairer to prosecutors, judges, defendants and the public to draw a bright line and hold that any reference made by a prosecutor regarding the availability of appeals which is made in the penalty phase of a capital case is reversible error.

Utter and Dolliver, JJ., concur with Pearson, C.J.